The opinion of the court was delivered by: Loretta A. Preska, United States District Judge

MEMORANDUM AND ORDER

Plaintiff Sheila Brody brings this Amended Complaint (hereafter, "Complaint" or "Compl.") against defendants Enhance Reinsurance Company Pension Plan and Enhance Reinsurance Company (collectively, "Enhance" or "Defendants") for violations of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"). Before this Court now are plaintiff's motion for summary judgment and defendants' cross-motion for summary judgment, both pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the foregoing reasons, plaintiff's motion is denied, and defendants' motion is granted in part and denied in part. In addition, plaintiff's motion to strike is denied.

BACKGROUND

Plaintiff was born on July 20, 1937. (Plaintiff's Local Rule 56.1 Statement of Uncontroverted Material Facts, hereafter "Pl's 56.1," at ¶ 1; Defendants' Statement Pursuant to Local Civil Rule 56.1, hereafter "Def's 56.1," at ¶ 1). Plaintiff was employed by Merrill Lynch from May 26, 1981 to March 13, 1987. (Affidavit of Somesha Ferdinand, hereafter "Ferdinand Aff.," at DX 28 at ENH 818). Thereafter, she was employed by Enhance beginning on March 30, 1987 until she retired on December 31, 1998. (Ferdinand Aff. DX 44 at ENH 164; Def's 56.1 ¶ 1). Enhance's current pension plan (the "Pension Plan" or "Plan") defines "Years of Service" to include "Years of service completed . . . after July 1, 1980 with Merrill Lynch." (Ferdinand Aff. DX 39 at ENH 946). Therefore, for purposes of determining plaintiff's Years of Service under the Plan, Enhance credits her years of employment at Merrill Lynch. (Defendant's Local Rule 56.1 Response and Counterstatement of Disputed Material Facts, hereafter "defendants' Counterstatement," at 2).

The Pension Plan was adopted with an effective date of November 1, 1986 (Affidavit of Robert Guarnera, hereafter "Guarnera Aff.," at ¶ 5). Each Plan year runs from November 1 to October 31. (Id.). As adopted in 1986, the Plan provided for a benefit formula of 40% of a Plan participant's compensation less two-thirds of such participant's primary Social Security benefit. (Def's 56.1 ¶ 13). The Plan also defined "Normal Retirement Age" as the later of age 55 or completion of ten Years of Service, as defined in the Plan. (Def's 56.1 ¶ 14).

On October 22, 1986, the Tax Reform Act of 1986 (Public Law 99-514) (hereafter, "TRA '86,") was enacted. (Def's 56.1 ¶ 15).*fn1 TRA '86 made extensive changes affecting employee pension plans, including amendments to the rules on non-discrimination and Social Security integration. (Def's 56.1 ¶ 16). As a result, plan sponsors were required to bring their pension plans into compliance with TRA '86 by the first day of a plan's 1989 Plan Year. (Def's 56.1 ¶ 17).

On December 27, 1988, the IRS issued Notice 88-131 containing Model Amendments 1, 2 and 3 that permitted plan sponsors to suspend, or "freeze," all future accruals from the first day of a plan's 1989 plan year until the last day of the 1989 plan year to give them time to comply with TRA '86. (Def's 56.1 ¶ 20). On June 22, 1989, the Board of Directors of Enhance adopted Model Amendment 3. (Def's 56.1 ¶ 23).

On December 11, 1989, the IRS issued Revenue Procedure 89-65 extending the suspension ("freeze") period afforded to plans by IRS Notice 88-131 until the last day of the 1991 Plan Year. (Def's 56.1 ¶ 25). On November 30, 1990, the IRS published Notice 90-73, further extending the suspension period to the last day of the 1992 Plan Year. (Def's 56.1 ¶ 27).

1. Enhance's 1991 Amendment

During 1989, Enhance requested that its pension plan consultant, Pension Designs Incorporated ("PDI"), recommend changes to Enhance's existing Plan that would bring it into conformity with TRA '86. (Def's 56.1 ¶ 29). On January 3, 1990, Robert Guarnera of PDI wrote to Daniel Gross, President of Enhance, and proposed certain changes to Enhance's Plan to comply with TRA '86. These changes included a change to the benefit formula and a change to the definition of "Normal Retirement Age" and would be effective as of the first day of Enhance's 1989 Plan Year, November 1, 1989 (Def's 56.1 ¶ 30). The benefit formula proposed by PDI would replace the old formula — 40% of Compensation less two-thirds of primary Social Security benefit*fn2 — with a formula of 2.6% of Compensation times Years of Service up to 25 years. (Def's 56.1 ¶ 32). The definition of "Normal Retirement Age" was changed from the later of age 55 or 10 Years of Service to the later of age 60 or 10 Years of Participation, as those terms were defined in the Plan. (Def's 56.1 ¶ 33).

Upon calculating the benefits for each of Enhance's Plan participants, PDI informed Enhance in its January 3, 1990 letter that the changes PDI was proposing would result in increased pension benefits at normal retirement for all Plan participants except for plaintiff. (Def's 56.1 ¶ 34). After receiving PDI's letter of January 3, 1990, Enhance approved the changes to the Plan proposed by PDI. (Def's 56.1 ¶ 35). Daniel Gross then informed plaintiff of the projected shortfall in her benefits and promised that they would "do something about that." (Def's 56.1 ¶ 36).

On April 25, 1990, PDI prepared an Actuarial Report for Enhance for the Plan Year beginning November 1, 1989. (Def's 56.1 ¶ 37). In calculating the Accrued Benefits as of November 1, 1989 for each of the Plan participants, PDI used a "greater of" (also known as a "wear-away") method. Under this method, PDI credited each participant with the greater of (1) such participant's Accrued Benefit earned as of October 31, 1989 under the benefit formula then in effect (actuarially increased to reflect the new Normal Retirement Age) or (2) the Accrued Benefit resulting from the application of the new benefit formula to all Years of Service. (Def's 56.1 ¶ 40).

By notice dated June 4, 1990, the Trustees of the Enhance Pension Plan sent a notice to all Participants in the Enhance Plan explaining that, effective November 1, 1989, the Plan's benefit formula would be changed as described above and that "[t]he amended Plan is no longer integrated with Social Security." (Def's 56.1 ¶ 44; Ferdinand Aff. DX 19).

On March 26, 1991, the Enhance Board amended the Pension Plan (the "1991 Amendment") by adopting the changes recommended by PDI in its letter of January 3, 1990. (Def's 56.1 ¶ 54). A certified copy of the 1991 Amendment was signed by Enhance President Daniel Gross and Enhance Pension Plan Trustee Wallace Sellers. (Def's 56.1 ¶ 56).

On March 26, 1991, the Enhance Board also adopted a resolution stating that "the amount of the pension payable to Sheila Brody upon her retirement from the Corporation be and hereby is increased by such minimum amount as is necessary to make the amount of such pension equal to that to which she would have been entitled if no amendment detrimentally affecting said pension had ever been adopted by the Board of Directors." (Def's 56.1 ¶ 64; Ferdinand Aff. DX 25 at ENH 454).

However, PDI's previous projections regarding plaintiff's benefits were erroneous. In those calculations, PDI had failed to include plaintiff's prior years of service with Merrill Lynch. (Def's 56.1 ¶ 66). When PDI included plaintiff's prior years of service at Merrill Lynch in her benefit calculations in PDI's 1992 Actuarial Report, plaintiff's projected monthly retirement benefit increased to $5,139.00 from $3,203.00. (Def's 56.1 ¶ 72).

2. The 1995 Amendment

On September 13, 1994, the Enhance Board amended the Pension Plan by suspending ("freezing") all benefit accruals, effective November 1, 1994. (Def's 56.1 ¶ 73). Also on September 13, 1994, Valerie Sellers of Enhance sent a notice to all Enhance employees informing them of the suspension of benefit accruals. (Def's 56.1 ¶ 78). The notice informed employees that "[u]pon completion of the plan's redesign, benefits which would have accrued to you under the revised plan will be retroactively provided as of November 1, 1994, the commencement of the plan's new year." (Ferdinand Aff. DX 34).

In October 1995, Enhance replaced PDI with Deloitte & Touche ("Deloitte") as its pension consultant. (Def's 56.1 ¶ 80). Deloitte outlined its recommended changes to Enhance's Pension Plan, including changes to the Normal Retirement Age and the benefit formula. (Def's 56.1 ¶ 82). On October 27, 1995, the Enhance Board adopted Deloitte's proposed changes to the Plan, including: (1) changing the definition of "Normal Retirement Age" to the later of age 62 or 10 Years of Service; (2) changing the benefit formula; and (3) changing the actuarial assumptions for lump sum payments. (Def's 56.1 ¶ 84). After Deloitte submitted a letter to the IRS requesting a determination that the Enhance Plan remained qualified pursuant to Section 401(a) of the Internal Revenue Code, the IRS responded that it had made a favorable determination that the new Enhance Plan remained qualified pursuant to Section 401(a). (Def's 56.1 ¶ 90).

On November 6, 1995, a notice was distributed to Enhance employees notifying them of the 1995 Amendment. (Def's 56.1 ¶ 92). On or about July 10, 1997, a Summary Plan Description (hereafter, "SPD") of the restated Enhance Pension Plan was prepared and made available to Plan Participants. (Def's 56.1 ¶ 94).

3. Plaintiff's Retirement

On December 3, 1998, plaintiff and Enhance entered into an Agreement and General Release terminating plaintiff's employment as of December 31, 1998. (Def's 56.1 ¶ 96; Ferdinand Aff. DX 44). Plaintiff's monthly annuity commencing on August 1, 1999 was calculated by Enhance (through its pension consultant, Deloitte) to be $5,341.00. (Pl's 56.1 ¶ 6). Plaintiff's lump sum benefit, payable January 1, 1999, was calculated to be $733,047. 00. (Def's 56.1 ¶ 98). Following her termination on December 31, 1998, plaintiff was paid the lump sum of $733,047.00. (Def's 56.1 ¶ 100).

After plaintiff retired and received her lump sum payment, plaintiff contacted Enhance and asked if she was due any further payment by reason of the 1991 Board Resolution. (Def's 56.1 ¶ 101). By letter dated May 6, 1999, PDI, Enhance's prior pension consultant, wrote to Enhance explaining how it had produced the erroneous calculation of plaintiff's benefits preceding the 1991 Amendment. (Def's 56.1 ¶ 104; Ferdinand Aff. DX 48). According to PDI, the error arose because PDI did not credit plaintiff's years of service with Merrill Lynch, even though plaintiff was entitled to credit for those years of service, in calculating plaintiff's benefits. (Ferdinand Aff. DX 48). By letter dated July 26, 1999, John Heaney of Enhance informed that it was Enhance's belief that plaintiff was "not negatively impacted" by the 1991 Amendment, that the board resolution regarding her benefits was "not necessary," and that her final pension benefit was "calculated appropriately." (Ferdinand Aff. DX 49).

4. Procedural History

On December 20, 2000, plaintiff filed an original complaint. On May 14, 2001, plaintiff filed an Amended Class Action Complaint (the "Amended Complaint" or "Complaint"), individually and on behalf of all others similarly situated.*fn3 Plaintiff alleges nineteen causes of action*fn4 alleging various violations of ERISA arising out of the 1991 and 1995 Amendments to Enhance's Pension Plan.

On March 15, 2002, after the close of discovery, plaintiff filed a motion for summary judgment on the issue of liability alone. On May 15, 2002, defendants cross-moved for summary judgment as to each and every claim asserted in plaintiff's Complaint.

DISCUSSION

I. Summary Judgment Standard

Under Rule 56, summary judgment shall be rendered if the pleadings, depositions, answers, interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R. Civ. Proc. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986). An issue of fact is genuine when "a reasonable jury could return a verdict for the nonmoving party," and facts are material to the outcome of the litigation if application of the relevant substantive law requires their determination. Anderson, 477 U.S. at 248.

The moving party has the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

The substantive law determines the facts which are material to the outcome of a particular litigation. Anderson, 477 U.S. at 250; Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975). In determining whether summary judgment is appropriate, a court must resolve all ambiguities, and draw all reasonable inferences against the moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

If the moving party meets its burden, the burden then shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.Proc. 56(e). The non-moving party must "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Only when it is apparent, however, that no rational finder of fact "could find in favor of the non-moving party because the evidence to support its case is so slight" should summary judgment be granted. Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994).

"On cross-motions for summary judgment, the standard is the same as that for individual motions. In evaluating each motion, the court must look at the facts in the light most favorable to the non-moving party. See Aviall, Inc. v. Ryder Sys., Inc., 913 F. Supp. 826, 828 (S.D.N.Y. 1996), aff'd, 110 F.3d 892 (2d Cir. 1997). `Simply because the parties have cross-moved, and therefore have implicitly agreed that no material issues of fact exist, does not mean that the court must join in that agreement and grant judgment as a matter of law for one side or the other. The court may conclude that material issues of fact do exist and deny both motions' Id. (internal citations omitted)." McGovern v. Local 456, Int'l Bhd. of Teamsters, Chauffeurs & Warehousemen & Helpers of Am., 107 F. Supp.2d 311, 316 (S.D.N.Y. 2000); see also Niss v. Columbia Pictures Indus., Inc., 97 Civ. 4636, 2000 U.S. Dist. LEXIS 18328, at *24 (S.D.N.Y. Dec. 21, 2000).

Section 402(a)(1) of ERISA provides, in pertinent part, that "[e]very employee benefit plan shall be established and maintained pursuant to a written instrument." 29 U.S.C. § 1102(a)(1). Section 402(b)(3) further provides that "[e]very employee benefit plan shall . . . provide a procedure for amending such plan, and for identifying the persons who have authority to amend the plan." 29 U.S.C. § 1102(b)(3). The purpose of the latter provision "is obviously functional: to ensure that every plan has a workable amendment procedure." Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 82 (1995) (emphasis in original).

Plaintiff asserts that defendants violated ERISA § 402(a)(1) by operating the Plan in accordance with the 1991 Amendment "as [if] it were a governing plan document," even though the 1991 Amendment was never adopted as a governing plan document and "was never available for review by Plan participants at the Plan Administrator's Office." See Compl. ¶¶ 21, 23.

Article 12.01 of the original Plan document states, "Any such amendments shall be effective when signed by the Employer and filed with the Trustees." See Ferdinand Aff. DX 3 at ENH 060. The "Employer," as defined in the Plan (Article 1.10), is Enhance Reinsurance Company. See id. at ENH 015. The uncontroverted evidence presented by defendants establishes that when the Board of Directors of Enhance adopted the 1991 Amendment, a certified copy of the Amendment was signed by the President of Enhance, Daniel Gross, who was also a trustee of Enhance, as well as by one of the other two Trustees of the Plan, Wallace Seller. See Affidavit of Daniel Gross (hereafter "Gross Aff.") at ¶ ...

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